Professional Documents
Culture Documents
Columbus, OH 43215 :
:
AMY ACTON :
Director, Ohio Department of Health :
246 N. High Street :
Columbus, OH 43215 :
:
KIM G. ROTHERMEL, M.D. :
Secretary, State Medical Board of Ohio :
30 East Broad Street, 3rd Floor :
Columbus, OH 43215 :
:
BRUCE R. SAFERIN, D.P.M. :
Supervising Member, State Medical :
Board of Ohio :
30 East Broad Street, 3rd Floor :
Columbus, OH 43215 :
:
MICHAEL C. O’MALLEY :
Cuyahoga County Prosecutor :
Justice Center Bld. Floor 8th and 9th :
1200 Ontario Street :
Cleveland, OH 44113 :
:
JOSEPH T. DETERS :
Hamilton County Prosecutor :
230 E. Ninth Street, Suite 4000 :
Cincinnati, OH 45202 :
:
RONALD O’BRIEN :
Franklin County Prosecutor :
373 S. High Street, 14th Floor :
Columbus, OH 43215 :
:
GARY BISHOP :
Richland County Prosecutor :
38 South Park Street :
Mansfield, OH 44902 :
:
PAUL J. GAINS :
Mahoning County Prosecutor :
21 W. Boardman Street, 6th Floor :
Youngstown, OH 44503 :
:
MATHIAS HECK, JR. :
Montgomery County Prosecutor :
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VERIFIED COMPLAINT
Plaintiffs, by and through their attorneys, bring this Complaint against the above-named
Defendants, their employees, agents, and successors in office, and in support thereof state the
following:
INTRODUCTION
2. For over forty-six years, U.S. law has recognized the fundamental federal
constitutional right to make the profoundly important and personal decision whether or not to
terminate a pregnancy. The U.S. Supreme Court has repeatedly recognized that this right is
central to obtaining equality and respecting the dignity, autonomy, and bodily integrity of all
individuals.
complex, and interrelated factors that are intimately related to the individual’s values and beliefs,
culture and religion, health status and reproductive history, familial situation, and resources and
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economic stability. In direct conflict with Roe v. Wade, 410 U.S. 113 (1973), and more than four
decades of precedent affirming Roe’s central holding, the Ban criminalizes almost all pre-
viability abortions. Specifically, the Ban makes it a crime to perform an abortion after detection
of cardiac activity, which generally occurs around six weeks in pregnancy, when many women1
are unaware they are pregnant. In so doing, the Ban prohibits approximately 90% of abortions
currently performed in Ohio and violates Plaintiffs’ patients’ rights guaranteed by the Fourteenth
4. The Ohio Legislature passed the Ban on April 10, 2019, and Governor DeWine
signed the Ban on April 11, 2019. If the Ban takes effect as scheduled on July 10, 2019, it will
instantly criminalize the performance of almost all abortions in Ohio. Governor DeWine
acknowledged that the Ban is blatantly unconstitutional and has stated that the Ban is an
and later a permanent injunction, Plaintiffs will be forced to turn away patients seeking abortion
care. This is a direct violation of Plaintiffs’ patients’ fundamental constitutional right to decide
whether to have an abortion prior to viability, and causes those patients irreparable harm.
1
Plaintiffs use “woman” or “women” in this complaint as a short-hand for people who are or
may become pregnant, but note that people of all gender identities, including gender non-
conforming people and transgender men, may also become pregnant and seek abortion services
and would thus also suffer irreparable harm as a result of the Ban.
2
Ohio Gov. Mike DeWine Signs Ban on Abortion After 1st Heartbeat, Associated Press (Apr. 12,
2019), https://www.apnews.com/0b1deb8c1f5d41d8ab4c9e32446a55ce. Similarly, S.B. 23’s
sponsor in the Senate acknowledged that, if upheld, S.B. 23 would create “a new standard” for
determining an abortion restriction’s constitutionality. Talia Kaplan, Ohio “Heartbeat”
Abortion Ban Passes Senate as Governor Vows to Sign It, Fox News (Mar. 14, 2019),
https://www.foxnews.com/faith-values/ohio-heartbeat-abortion-ban-closer-to-becoming-law.
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6. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1343.
7. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C.
§§ 2201 and 2202, Rules 57 and 65 of the Federal Rules of Civil Procedure, and the general legal
events or omissions giving rise to Plaintiffs’ claims occur in this judicial district.
PLAINTIFFS
the laws of the State of Ohio, has operated a reproductive health care clinic in Cleveland, Ohio
since 1974. Preterm provides a wide range of reproductive and sexual health care services. The
abortion providers at Preterm are threatened with criminal penalties, loss of their medical
licenses, civil forfeiture, and civil suits if they violate the Ban. Preterm sues on behalf of itself;
its current and future staff, officers, and agents; and its patients.
corporation organized under the laws of the State of Ohio. PPSWO and its predecessor
organizations have provided a broad range of high-quality reproductive health care to patients in
southwest Ohio since 1929. PPSWO’s surgery center, located in Cincinnati, provides abortion
services. The abortion providers at PPSWO are threatened with criminal penalties, loss of their
medical licenses, civil forfeiture, and civil suits if they violate the Ban. PPSWO sues on behalf
of itself; its current and future staff, officers, and agents; and its patients.
11. Plaintiff Sharon Liner, M.D., is a physician licensed to practice medicine in Ohio
with fifteen years of experience in women’s healthcare. Dr. Liner is PPSWO’s Medical
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Director, and in that role she supervises physicians providing abortions, develops PPSWO’s
policies and procedures, and provides health care services including abortion. Dr. Liner has been
providing abortions since 2002. She sues on her own behalf and on behalf of her patients.
corporation organized under the laws of the State of Ohio. PPGOH was formed in 2012 through
a merger of several local and regional Planned Parenthood affiliates that had served patients in
Ohio for decades. PPGOH serves patients in northern, eastern, and central Ohio. Four PPGOH
health centers, located in East Columbus, Bedford Heights, Mansfield, and Youngstown, provide
abortion services. The Mansfield and Youngstown health centers provide only medication
abortion services. The abortion providers at PPGOH are threatened with criminal penalties, loss
of their medical licenses, civil forfeiture, and civil suits if they violate the Ban. PPGOH sues on
behalf of itself; its current and future staff, officers, and agents; and its patients.
13. Plaintiff Women’s Med Group Professional Corporation (“WMGPC”) owns and
operates Women’s Med Center of Dayton (“WMCD”) in Kettering, Ohio. WMGPC and its
predecessors have been providing abortions in the Dayton area since 1975. The abortion
providers at WMCD are threatened with criminal penalties, loss of their medical licenses, civil
forfeiture, and civil suits if they violate the Ban. WMGPC sues on behalf of itself; its current
under the laws of the State of Ohio, has operated a health care clinic in Toledo, Ohio since 2007.
The abortion providers at CCNT are threatened with criminal penalties, loss of their medical
licenses, civil forfeiture, and civil suits if they violate the Ban. CCNT sues on behalf of itself; its
current and future staff, officers, and agents; and its patients.
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15. Plaintiffs provide medication abortion, surgical abortion, or both medication and
surgical abortion at and after six weeks from the first day of the patient’s last menstrual period
(“LMP”). In accordance with Ohio law, no Plaintiffs provide abortion care at or after twenty
DEFENDANTS
16. Defendant David Yost is the Attorney General of the State of Ohio. He is
responsible for the enforcement of all laws, including the Ban. Under the Ban, he is also charged
with commencing and prosecuting civil forfeiture when directed to do so by the State Medical
Board. S.B. 23 § 1, amending Ohio Rev. Code § 2919.1912(B). He is sued in his official
capacity.
17. Defendant Amy Acton, M.D., M.P.H., is the Director of the Ohio Department of
Health (“ODH”), which is responsible for promulgating rules to assist in compliance with the
Ban, including rules governing the process for determining whether a fetal heartbeat exists and
rules dictating reporting requirements. She is charged with administering ODH. She is sued in
18. Defendant Kim G. Rothermel, M.D., is the Secretary of the State Medical Board
of Ohio, which is charged with enforcing the physician licensing and civil penalties contained in
19. Defendant Bruce R. Saferin, D.P.M., is the Supervising Member of the State
Medical Board of Ohio, which is charged with enforcing the physician licensing and civil
responsible for the enforcement of all of the criminal laws in Cuyahoga County, where Preterm’s
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clinic and PPGOH’s Bedford Heights health center are located, including the criminal provisions
for the enforcement of all of the criminal laws in Hamilton County, where PPSWO’s Cincinnati
surgery center is located, including the criminal provisions contained in the Ban. He is sued in
for the enforcement of all of the criminal laws in Franklin County, where PPGOH’s East
Columbus health center is located, including the criminal provisions contained in the Ban. He is
23. Defendant Gary Bishop is the Richland County Prosecutor. He is responsible for
the enforcement of all of the criminal laws in Richland County, where PPGOH’s Mansfield
health center is located, including the criminal provisions contained in the Ban. He is sued in his
official capacity.
for the enforcement of all of the criminal laws in Mahoning County, where PPGOH’s
Youngstown health center is located, including the criminal provisions contained in the Ban. He
responsible for the enforcement of all of the criminal laws in Montgomery County, where
WMGPC’s WMCD facility is located, including the criminal provisions contained in the Ban.
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26. Defendant Julia R. Bates is the Lucas County Prosecutor. She is responsible for
the enforcement of all of the criminal laws in Lucas County, where CCNT’s health center is
located, including the criminal provisions contained in the Ban. She is sued in her official
capacity.
STATUTORY FRAMEWORK
27. If a pregnancy is in the uterus, Ohio law requires the provider who intends to
perform an abortion to determine whether there is cardiac activity.3 If there is cardiac activity,
the Ban makes it a crime to “caus[e] or abet[] the termination of” the pregnancy. S.B. 23 § 1,
28. The Ban has only two very limited exceptions. The Ban permits abortion after
cardiac activity is detected only if the abortion is necessary (1) to prevent the patient’s death, or
(2) to prevent a “serious risk of the substantial and irreversible impairment of a major bodily
function.” S.B. 23 § 1, amending Ohio Rev. Code § 2919.195(B). “‘Serious risk of the
substantial and irreversible impairment of a major bodily function’ means any medically
diagnosed condition that so complicates the pregnancy of the woman as to directly or indirectly
cause the substantial and irreversible impairment of a major bodily function.” Ohio Rev. Code §
2919.16(K). A “medically diagnosed condition that constitutes a ‘serious risk of the substantial
abortion, and premature rupture of the membranes,” but “does not include a condition related to
3
The Ban instructs the Ohio Department of Health to adopt rules “specifying the appropriate
methods of performing an examination for the purpose of determining the presence of a fetal
heartbeat” within 120 days of the Ban’s effective date. S.B. 23 § 1, amending Ohio Rev. Code §
2919.192.
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prison and a fine of $2,500. S.B. 23 § 1, amending Ohio Rev. Code § 2919.195(A); Ohio Rev.
board may assess a forfeiture of up to $20,000 for each violation of the Ban, S.B. 23 § 1,
amending Ohio Rev. Code § 2919.1912(A), and limit, revoke, or suspend a physician’s medical
license based on a violation of the Ban, see Ohio Rev. Code § 4371.22(B)(10). The Plaintiff
facilities could face criminal penalties and revocation of their ambulatory surgical center license
for a violation of the Ban. A patient may also bring a civil action against a provider who violates
the Ban and recover damages in the amount of $10,000 or more. S.B. 23 § 1, amending Ohio
FACTUAL ALLEGATIONS
30. In a normally developing embryo, cells that form the basis for development of the
heart later in gestation produce activity that can be detected with ultrasound.
31. Consistent with medical practice, as well as existing law, see Ohio Rev. Code
§ 2919.191(A), Plaintiffs perform an ultrasound to date the pregnancy and to determine whether
there is detectable fetal or embryonic cardiac activity.4 Ultrasounds can be performed either by
placing a transducer on the patient’s abdomen or by inserting a probe into the patient’s vagina.
Many providers, including providers at Plaintiff clinics, use vaginal ultrasound to confirm and
4
The embryonic stage of pregnancy lasts from fertilization until approximately eight to ten
weeks LMP. Beginning at about eleven weeks LMP, the embryo becomes a fetus.
10
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33. Ohio law prohibits abortion after viability, except when that abortion is necessary
to preserve the pregnant woman’s life or health.6 Ohio Rev. Code § 2919.17.
34. Six weeks LMP is a pre-viability point in pregnancy. At that point, no embryo is
capable of surviving outside of the womb. Thus, the Ban prohibits abortion well before viability.
A. A Ban on Abortion at and After Six Weeks LMP Will Practically Eliminate
Abortion Care in Ohio
35. Pregnancy is commonly measured from the first day of a woman’s last menstrual
36. The menstrual cycle is usually approximately four weeks long, but will vary
based on the individual. Thus, even a woman with highly regular periods would be four weeks
pregnant as measured from her last menstrual period when her missed period occurs. A ban on
abortion at and after six weeks would only allow two weeks, at most, for a woman to learn that
she is pregnant, decide whether to have an abortion, and to seek and obtain abortion care.
37. Prior to six weeks LMP, many women have none of the physical indicators of
pregnancy. Many women do not menstruate at regular intervals, or they go long stretches
without experiencing a menstrual period. Menstrual patterns commonly vary with age. Indeed,
it is extremely common for women to have irregular periods at some point in their lives.
5
See Thomas Gellhaus, M.D., ACOG Opposes Fetal Heartbeat Legislation Restricting Women’s
Legal Right to Abortion, American Congress of Obstetricians & Gynecologists (Jan. 18, 2017),
https://www.acog.org/About-ACOG/News-Room/Statements/2017/ACOG-Opposes-Fetal-
Heartbeat-Legislation-Restricting-Womens-Legal-Right-to-Abortion.
6
Another provision of Ohio law prohibits abortion after twenty weeks post-fertilization, or
twenty-two weeks LMP. Ohio Rev. Code § 2919.201.
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Additionally, women may experience bleeding in early pregnancy that can be mistaken for a
period.
38. Further, women who have certain common medical conditions, such as obesity,
those who are breastfeeding, or those who use hormonal contraceptives may experience irregular
periods and therefore may not recognize a missed period before six weeks LMP.
39. For all of these reasons, a woman may be six weeks pregnant but not realize she
has missed a period, much less consider a missed period unusual or a signal that she may be
pregnant.
40. On top of these biological realities, many patients face logistical obstacles that
41. For example, Ohio law mandates that a patient make two in-person trips to the
clinic before obtaining an abortion in order to consent, determine whether there is cardiac
activity, and receive state-mandated information. Ohio Rev. Code § 2317.56. These visits must
42. State law prohibits Medicaid and other public insurance programs, as well as
private insurance plans listed on Ohio’s federally run insurance exchange, from covering
abortion. Ohio Rev. Code §§ 9.04, 3901.87; Ohio Admin. Code § 5160-17-01. Thus, patients
often need time to gather the resources to pay for the abortion and related costs, as well as to
arrange transportation to the clinic, time off from work, and possibly arrange for childcare during
appointments.
43. In addition to completing this two-day process, patients under eighteen must
obtain written consent from a parent or a court order from a judge before receiving abortion care.
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44. For all of the reasons stated above, approximately 90% of abortions in Ohio occur
45. Thus, the Ban will prohibit almost all abortion care in Ohio.
46. The near-total ban on abortion imposed by S.B. 23 would have a devastating
impact on the lives of individuals who want to consider or seek abortion in Ohio.
47. Approximately one in four women in this country will have an abortion by age
forty-five. A majority of those having abortions (61%) already have at least one child, while
most (66%) also plan to have a child or additional children in the future.7
48. Legal abortion is one of the safest medical procedures in the United States and is
substantially safer than continuing a pregnancy through to childbirth. The risk of death
associated with childbirth is approximately fourteen times higher than that associated with
abortion, and every pregnancy-related complication is more common among women giving birth
49. If a woman is forced to continue a pregnancy against her will, it can pose a risk to
her physical, mental, and emotional health, as well as to the stability and well-being of her
7
See Rachel K. Jones & Jenna Jerman, Population Group Abortion Rates and Lifetime Incidence
of Abortion: United States, 2008-2014, Guttmacher Institute (Oct. 2017),
https://www.guttmacher.org/article/2017/10/population-group-abortion-rates-and-lifetime-
incidence-abortion-united-states-2008; Concern for Current and Future Children a Key Reason
Women Have Abortions, Guttmacher Institute (Jan. 7, 2008), https://www.guttmacher.org/news-
release/2008/concern-current-and-future-children-key-reason-women-have-abortions; Abortion
Facts, National Abortion Federation, https://prochoice.org/education-and-advocacy/about-
abortion/abortion-facts/.
8
Elizabeth Raymond & David Grimes, The Comparative Safety of Legal Induced Abortion and
Childbirth in the United States, 119 Obstetrics & Gynecology 215, 215 (Feb. 2012).
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50. A child can place economic and emotional strain on a family and may interfere
with an individual’s life goals. As most patients who seek abortion already have at least one
child, families must consider how an additional child will impact their ability to care for the
51. Even for someone who is otherwise healthy and has an uncomplicated pregnancy,
carrying that pregnancy to term and giving birth poses serious medical risk and can have long-
term medical and physical consequences. For a woman with a medical condition caused or
exacerbated by pregnancy or for a woman who learns that her fetus has been diagnosed with a
52. Pregnancy, childbirth, and an additional child may exacerbate an already difficult
situation for those who have suffered trauma, such as sexual assault or domestic violence.
53. If a woman is forced to continue a pregnancy against her will, it can pose a risk to
her physical, mental, and emotional health, as well as to the stability and wellbeing of her family,
54. S.B. 23 will have a disproportionate impact on the lives of Black people, other
55. Statistics show that in 2017, Black people made up only 12.9% of Ohio’s
population but 40% of people who obtained abortions in Ohio; Indigenous (American Indian)
people and other people of color (Asian/Pacific Islander, Multiracial, and Hispanic people) made
up 8.8% of the population, but 11.9% of the people that obtain abortions.9
9
Induced Abortions in Ohio, Ohio Dep’t of Health (2017),
https://odh.ohio.gov/wps/portal/gov/odh/know-our-programs/vital-statistics/resources/vs-
abortionreport2017; Quick Facts: Ohio, U.S. Census Bureau,
https://www.census.gov/quickfacts/oh.
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56. Were the Ban to go into effect, Black people are likely to suffer some of the
gravest consequences. Recent statistics from the U.S. Centers for Disease Control and
Prevention show that Black women are three times more likely than White women to die of
causes related to pregnancy.10 In Ohio, Black infants are three times more likely than their
57. A large majority of patients who obtain abortion care in Ohio are low income.
58. Absent an injunction, Plaintiffs will have no choice but to turn away patients in
need of abortion care. Ohioans well-being and dignity would suffer irreparably. The Ban
violates the constitutional rights of Plaintiffs’ patients and irreparably harms them.
COUNT I
60. By prohibiting abortion prior to viability, the Ban violates Ohioans’ right to
61. If the Ban is allowed to take effect, Plaintiffs’ patients will be subject to
irreparable harm for which no adequate remedy at law exists by preventing Plaintiffs’ patients
10
Emily E. Petersen et al., Vital Signs: Pregnancy-Related Deaths, United States, 2011-2015,
and Strategies for Prevention, 13 States, 2013-2017, 68 Morbidity & Mortality Weekly Rep. 423
(May 10, 2019),
https://www.cdc.gov/mmwr/volumes/68/wr/mm6818e1.htm?s_cid=mm6818e1_w.
11
Ohio Infant Deaths in 2017 Second-Lowest on Record While Racial Disparities in Birth
Outcomes Continued, Ohio Dep’t of Health (Dec. 6, 2018),
https://odh.ohio.gov/wps/portal/gov/odh/media-center/odh-news-releases/2017-ohio-infant-
mortality-report.
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from obtaining an abortion in Ohio, thereby causing them to suffer significant constitutional,
and later a permanent injunction, restraining Defendants, their employees, agents, and successors
B. To enter a judgment declaring that the Ban violates the Fourteenth Amendment to
C. To award Plaintiffs their attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.
D. To grant such other and further relief as the Court deems just and proper.
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Respectfully Submitted,
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DECLARATION
I declare under penalty of perjury under the laws of the United States of America that the
statements contained in the Complaint are true and co1Tect to the best of my knowledge and
belief.
Sh~,......
Platmed Parenthood Southwest Ohio
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DECLARATION
I declare under penalty of perjury under the laws of the United States of America that the
statements contained in the Complaint related to Plaintiff Preterm-Cleveland are true and correct
L
Chrisse Franee
Executive Director
Preterm-Cleveland
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DECLARATION
I declare under penalty of perjury under the laws of the United States of America that the
statements contained in the Complaint related to Plaintiff Planned Parenthood Southwest Ohio
Region arc true and correct to the best of my knowledge and belief.
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DECLARATION
I declare under penalty of perjury under the laws of the United States of America that the
statements contained in the Complaint related to Plaintiff Planned Parenthood of Greater Ohio
~--'---.'~~~~~--~~
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DECLARATION
I declare under penalty of perjury under the laws of the United States of America that the
statements contained in the Complaint related to Plaintiff Women' s Med Group Professional
Corporation are true and correct to the best of my knowledge and belief.
22
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DECLARATION
I declare under penalty of perjury under the laws of the United States of America that the
statements contained in the Complaint related to Plaintfff Capital Care Network of Toledo are true
, ' ~
TieHUbbfil'rl:CE .
Capital Care Network of Toledo
23